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27th UPR session
Date of review: 9 May 2017
Date of report adoption: 22 Sep 2017
Document number: A/HRC/36/14
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SUMMARY SOGIESC issues during Poland’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
National human rights framework
6. Joint Submission 5 (JS5), Polish Council of Youth Organizations (PROM) and AI expressed concern about the significant reduction of the budget for the Office of the Human Rights Commissioner (Office of the Commissioner). PROM indicated that the budget cut posed a serious risk of a number of adverse consequences and was against recommendations 90.32, 90.34 and 90.35. JS5 and Joint Submission 6 (JS6) highlighted that the main argument for cutting its budget was the fact that it carried out antidiscrimination tasks, including gender equality and LGBT rights, and that the Commissioner for Human Rights had regularly been attacked by right-wing parties, including the ruling party. The Council of Europe Commissioner for Human Rights (CoECommissioner) strongly urged Poland to ensure that the Office of the Commissioner enjoy full independence through adequate resources.
Equality and non-discrimination
11. AI, Fundacia Trans-Fuzia (TF), JS5, and the European Commission against Racism and Intolerance of the Council of Europe (CoE-ECRI) expressed concern that LGBTI persons and persons with disabilities had not been awarded greater protection in Poland’s anti-discrimination law.
12. JS5 indicated that the Equal Treatment Act lacked holistic approach to the issue of discrimination and did not treat all marginalised groups equally. This resulted in hierarchy of protection, where the least protected grounds were sexual orientation, age, disability and religion. Prohibition of discrimination based on sexual orientation had been implemented only in relation to the Labour Code, and to a limited extent, to the Equal Treatment Act. However, provisions included in the Act covered only the area of employment, excluding other areas, such as health care, education and access to goods and services. The Polish authorities still had not implemented any provisions prohibiting discrimination based on gender identity.
13. AI stated that the Criminal Code specifically provided for the investigation and prosecution of hate crimes motivated by race, ethnicity, nationality, religion and political affiliation. However, it did not establish that age, disability, gender, gender identity and expression, sexual orientation, and social or economic status were grounds to investigate and prosecute hate crimes. JS4, JS5, JS6, TF and CoE-ECRI raised similar concerns.
18. Concerning the collection of data on and monitoring of hate crime and hate speech, JS4 stated that the system was fairly capable of capturing recorded incidents motivated by racism and xenophobia (bias motivations included in the Criminal Code), however, when it came to biases which were not mentioned in the Criminal Code, primarily sexual orientation, gender identity and disability, the numbers captured were still negligible.
21. Concerning recommendation 90.67 on guaranteeing the full enjoyment of the rights of the LGBT community, TF indicated that its implementation was a subject of debate, although it had been said to be “in the course of implementation”.
22. JS4 noted that Poland had not implemented recommendations 90.66, 90.68 and 90.94 on hate crimes against LGBT persons.
23. On recommendations 90.68 and 90.71, JS6 stated that LGBTI persons did not receive the full protection of the State for their enjoyment of freedom of association. A refusal to officially acknowledge attacks against them left LGBTI persons and other minority groups without adequate protection. AI noted that, in February and March 2016, the offices of two major LGBTI organizations in Warsaw, Campaign against Homophobia and Lambda, were attacked.
24. As for recommendation 90.70, TF stressed that transgender persons had still not been included in the anti-discrimination law. For recommendation 90.71, TF welcomed the introduction of partial funding of hormone in 2015 by the Ministry of Health. However, TF regretted a 2016 draft policy on diplomas and certificates of higher education, which required transgender people, who had received legal gender recognition, to return the original diploma and all of its official copies, in order to have a new diploma and certificate issued.
25. Concerning recommendation 90.94, TF noted an elevated interest of law enforcement in training on transgender issues between 2011 and 2014, however, according to TF, such an interest decreased significantly in late 2015 and throughout 2016.
26. Campaign against Homophobia (KPH) and JS5 stated that there were no policies and standards ensuring equal treatment and safety of LGBTI persons in schools. Many schools denied the existence of LGBTI students, who experienced homophobic behavior, not only from other students but also from teachers, educators, and especially priests and nuns conducting religion lessons. CoE-ECRI recommended inclusion in the curricula of all branches of education a programme for raising awareness about, and combating, discrimination towards LGBT persons.
Right to privacy and family life
61. In reference to recommendations 90.69, 90.71, and 90.97, KPH indicated that the adoption of legislation enabling same-sex couples entering into civil union was still necessary. According to KPH, lack of recognition of same sex-couples led to discrimination of both same-sex couples and of trans persons in marriages, who needed to divorce in order to receive legal gender recognition. EU-FRA raised similar concern. According to JS5, Polish citizens who intended to get a civil partnership or marriage with a same-sex partner were often refused the civil status certificates, due to the fact that the Constitution defined marriage as a relationship of a men and a woman.
62. TF stated that a number of trans persons were delaying their legal gender recognition and medical transition in fear of losing parental rights, as the rights of transitioning parents had not been safeguarded by the State. Furthermore, according to TF, there were no existing alternatives to trans persons and their spouses, who wished to remain in a relationship, as Poland did not recognize neither same sex marriage, nor civil partnerships of any kind, hence couples were effectively forced to divorce as part of legal gender recognition.
63. CoE-ECRI recommended legislative changes to guarantee comprehensive protection on grounds of sexual orientation and gender identity, ensuring that the necessary administrative documents can be issued to persons wishing to enter into a same-sex marriage or partnership in another country, and facilitate changes of gender and name.
Right to health
68. EU-FRA noted that those engaged in education and healthcare had very little knowledge of LGBT issues. LGB identifies were either overlooked in medical school or presented as a mental illness or sexual behaviour disorder. CoE-ECRI raised similar concern. KPH also noted that LGBTI patients faced barriers in access to health services, partially due to the lack of curricula regarding LGBTI issues in medical universities. A large proportion of medical practitioners saw homosexuality as a pathological problem, which required psychiatric treatment.
II. Excerpts on SOGIESC issues from the national report
Combatting discrimination and violence on grounds of sexual orientation – recommendations 66, 68, 70, 71
89. According to Article 11.3 of the LC, any discrimination in employment, including on grounds of sexual orientation, either direct or indirect, is prohibited. Employees have equal rights for equal performance of the same obligations (recommendation 70). The provisions of the LC concerning compensation for a violation of the principle of equal treatment in employment apply in the event of damage caused by discrimination on grounds of sexual orientation. The Act of 3 December 2010 implementing certain EU legislation on equal treatment prohibits discrimination (among other things on grounds of sexual orientation) against individuals who work under civil law contracts.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
12. The Human Rights Committee and the Committee on Economic, Social and Cultural Rights recommended that Poland amend the Act on Equal Treatment to prohibit discrimination comprehensively on all grounds prohibited under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, including sexual orientation, disability, religion, age and political opinion, and in all spheres and sectors, including education, health care, social protection and housing. The Committee on the Rights of the Child made a similar recommendation.
13. The Human Rights Committee was concerned that the Criminal Code did not refer to disability, age, sexual orientation or gender identity as grounds for hate crimes. The Committee against Torture recommended that Poland amend the Code to punish hate crimes and acts of discrimination and violence based on sexual orientation, disability or age. The Committee on the Rights of the Child made a similar recommendation. The Committee on the Elimination of Racial Discrimination recommended that Poland amend its Criminal Code to make any racial motivation of a crime an aggravating circumstance and to allow for enhanced punishment to combat the occurrence of such acts.
14. The Human Rights Committee was concerned about the reported increase in the number of incidents of violence, hate speech and discrimination based on race, nationality, ethnicity, religion and sexual orientation and the insufficient response by the authorities to such incidents.
21. The Committee on the Elimination of Discrimination against Women pointed to the limited effectiveness, if any, of measures to counter negative stereotypes against Roma women, lesbian, bisexual, transgender and intersex women and women with disabilities.
22. The Human Rights Committee recommended that Poland review the legal status of same-sex couples and parents with a view to ensuring their enjoyment of the right to nondiscrimination in law and in fact.
Women
67. The Committee on the Elimination of Discrimination against Women recommended that Poland review the Act on Equal Treatment to ensure that anti-discrimination legislation contained a definition of discrimination against women explicitly prohibiting sex- and gender-based discrimination.
68. The Committee was concerned about the low number of complaints of sex- and gender-based discrimination where compensation had been awarded; the limited application of administrative sanctions; and the inadequate means of redress in cases of sex and gender-based discrimination. It recommended that Poland ensure the effective application of administrative sanctions by the Office of the Commissioner.
Migrants, refugees and asylum seekers
96. UNHCR indicated that asylum seekers and refugees living outside of reception facilities faced difficulties in gaining access to sexual and gender-based violence prevention and response assistance, owing in part to geographic distance and/or isolation.
97. UNHCR stated that the national response system on sexual and gender-based violence, known as the “blue line”, had limited interpretation services and was not prepared to respond to the particular needs of asylum-seeking and refugee survivors of such violence owing to their limited knowledge of cultural differences and refugee situations, including possible traumatic experiences relating to past persecution.
IV. References to SOGIESC issues during the Working Group review
14. Concerning the question by Sweden on criminalizing hate speech related to gender identity, sexual orientation or disability, it was reported that courts in Poland took into account the perpetrator’s motivation when determining the type and level of penalty. Pursuant to article 53 (2) of the Criminal Code, this included gender identity, sexual orientation and disabilities.
15. Article 53 applied to all acts criminalized under the Code, such as causing bodily harm or defamation. The provision in question was of a general nature and did not limit the type of motivation that had to be taken into account by the courts. Article 212 included provisions that criminalized the slander of a person or a group of persons in relation to conduct or traits that might discredit him/her/them in the face of public opinion, or result in a loss of confidence necessary to engage in certain activities. Those provisions also applied to slander on the grounds of gender identity, sexual orientation and disabilities.
57. Concerning the legal protection granted to vulnerable groups, such as lesbian, gay, bisexual, transgender and intersex persons and persons with disabilities, anti-discrimination provisions should be considered as a system. Relevant provisions in the Civil Code guaranteed broad protection of personal goods. Provisions to protect such groups were contained in the Criminal Code and other regulations, as well as in the Act implementing certain European Union legislation on equal treatment.
59. The Ministry of the Interior and Administration collected data on hate crimes cases against lesbian, gay, bisexual and transgender persons. In 2015, a new system had been introduced to record all hate crime investigations led by the police, including the investigations of crimes motivated by sexual orientation or gender identity. As for anti-Muslim and anti-Semitic hate speech, the Government condemned all such incidents. All cases of hate speech constituting a crime were subjected to criminal liability according to the Criminal Code and subjected to the criminal proceedings.
60. According to the Constitution and family law, including the regulation on recording marital relationships, civil partnerships, including same-sex relationships, could not be registered.
70. Canada urged Poland to take further measures to enhance the scope of protection of lesbian, gay, bisexual, transgender and intersex persons and to prevent acts of discrimination.
71. Chile welcomed measures, including legislative reforms, to combat gender violence, but was concerned about the implementation of the reforms to the Constitutional Court and the increase in xenophobia, racism and discrimination.
90. Iceland regretted that lesbian, gay, bisexual, transgender and intersex persons were still not sufficiently protected under national law and was concerned about the difficulties women faced in gaining access to safe abortions and the related law before Parliament.
101. Ireland was pleased to note that Polish law prohibited discrimination in political, social and economic life and that the Labour Code prohibited any discrimination in employment, including on grounds of sexual orientation.
105. Slovenia expressed its concern regarding the weak response in combating discrimination and violence on grounds of the sexual orientation and gender identity and encouraged Poland to broaden the anti-discrimination legislation.
V. Conclusions and/or recommendations
Poland accepted the following recommendations:
120.46 Improve further its non-discrimination legislation by criminalizing hate crimes on the grounds of age, disability, sexual orientation and gender identity, while taking the measures necessary to combat discrimination based on race, sex, nationality, ethnicity, religion or any other grounds (Brazil);
120.47 Amend the Penal Code to provide that crimes motivated by discrimination on any grounds, including disability, gender identity and expression and sexual orientation, are included in the Code and therefore can be investigated and prosecuted as hate crimes (Norway);
120.49.2 Amend the Act on Equal Treatment in order to prohibit discrimination, in a comprehensive manner, including on the basis of sexual orientation and gender identity, in all areas and sectors, in particular taking into account access to education, health, social protection and housing (Mexico);
120.50 [Extend its anti-discrimination laws and hate crime legislation to]* ensure equal treatment and broad protection for all from discrimination, regardless of sexual orientation and gender identity (United Kingdom of Great Britain and Northern Ireland);
120.71 Combat violence and discrimination against lesbian, gay, bisexual, transgender and intersex persons (United States of America);
120.72 Amend the Criminal Code to provide that crimes motivated by discrimination on the grounds of sexual orientation or gender identity are investigated and prosecuted as hate crimes (Belgium);
120.73 Amend the Penal Code to provide that crimes motivated by discrimination on any grounds, gender identity and expression and sexual orientation, are investigated and prosecuted as hate crimes (Iceland);
120.74 Amend the Penal Code to ensure that lesbian, gay, bisexual, transgender and intersex persons are fully protected against discrimination, hate speech and hate crimes based on sexual orientation and gender identity (Canada);
120.76.1 Strengthen the protection of individuals against discrimination, including based on sexual orientation or gender identity, […] (Czechia);
120.77.1 Strengthen efforts to protect lesbian, gay, bisexual, transgender and intersex persons against violence and discrimination, (Ireland);
*This first part between marks has been noted, but the rest has been accepted
Poland noted the following recommendations:
120.75 Recognize civil unions between same-sex persons (Spain);
120.76.2 [Strengthen the protection of individuals against discrimination, including based on sexual orientation or gender identity, inter alia,] by allowing the legal status of same-sex couples, and in that regard pass a law on civil union or registered partnership (Czechia);
120.77.2 [Strengthen efforts to protect lesbian, gay, bisexual, transgender and intersex persons against violence and discrimination], by including sexual orientation and gender identity in hate speech provisions, by making provisions in law for same-sex civil partnership or marriage, and by making arrangements for the relevant Polish authorities to provide Polish citizens wishing to marry or otherwise register a same-sex relationship abroad with all necessary documentation (Ireland);
VI. Further information
You will find all documents relating to Poland’s third review at UPR-Info and OHCHR’s websites.